Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.

Employment protection during a NSW s 44 fire – amended

The ‘s 44’ in the title of this post is a reference to the Rural Fires Act 1997 (NSW) s 44. That section says, amongst other things:

(1) The Commissioner [of the Rural Fire Service] is to take charge of bush fire fighting operations and bush fire prevention measures and to take such measures as the Commissioner considers necessary to control or suppress any bush fire in any part of the State if, in the opinion of the Commissioner:

(a) a bush fire has assumed or is likely to assume such proportions as to be incapable of control or suppression by the fire fighting authority or authorities in whose area or locality it is burning, or

(b) the prevailing conditions are conducive to the outbreak of a bush fire likely to assume such proportions, or

(c) a bush fire is not being effectively controlled or suppressed by the fire fighting authority or authorities in whose area or locality it is burning, or

(d) a bush fire is burning in a place that is not the responsibility of any fire fighting authority.

Today’s correspondent is a member of the Rural Fire Service and asks about employment protection during a fire where the Commissioner has taken overall responsibility for the fire fighting effort under this section. My correspondent writes:

I am currently employed in NSW by a private multi-national company who have previously been fantastic in allowing myself and others some flexibility to attend operational tasks as a volunteer fire fighter with the NSWRFS. In fact, my employer has encouraged staff participation in such volunteer work. Although there has never been any wording within my employment contract to accommodate this, they have always been happy for me to use whatever leave entitlements that may apply under standard employment statutes in NSW (i.e.: I’m not under any particular award). Two weeks ago, our company was acquired by another company and the new general manager that I report to is of the opinion that this type of emergency services leave will not be supported. This has coincided with recent section 44 declarations for large fires in NSW…I spoke to my new manager … and [he] informed me that “if you ever get on a fire truck in work time, you will be out of a job”. Could you please advise if employees who are volunteer members of the RFS are afforded any protection from this type of threat to their employment, particularly under the coverage of a section 44 or otherwise. Also, do employers have any legal obligation to release staff who are RFS members when it is in relation to the direct response to a section 44 event.

There is some protection for volunteers in NSW but not related to s 44. Section 60B of the State Emergency and Rescue Management Act 1999 (NSW) says:

An employer must not victimise an employee of the employer for being absent if the absence was due to the employee taking part in emergency operations as a member of an emergency services organisation and the absence occurred while this Part applied to the operations (pursuant to an order of the Premier under this Part).

Victimise means much more than just dismiss. According to s 60C:

An employer victimises an employee if the employer:

(a) dismisses the employee from employment with the employer or terminates the engagement of the employee by the employer, or

(b) alters the employee’s position in his or her employment with the employer, or alters the circumstances of the employee’s engagement by the employer, to the employee’s prejudice, or

(c) otherwise injures the employee in his or her employment with, or engagement by, the employer.

The ‘part’ to which the section is referring to is Part 3A ‘Employment Protection for Volunteer Emergency Workers’ but it only applies to an emergency where the premier has made a declaration that the part applies. The emergency does not have to be a declared state of emergency under other parts of the Act. So, the employment protection can apply during a s 44 fire, but only if the Premier makes the declaration. The declaration by the Rural Fire Service Commissioner does not, on its own, bring those provisions into operation.

The other relevant provisions are Fair Work Act 2009 (Cth) s 772. That section says an employee’s employment must not be terminated due to ‘temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.’ Voluntary emergency management activity means, amongst other things, responding as a member of ‘an emergency management body’ in circumstances where the member has been asked to respond or if no formal request has been made, it is reasonable to assume that the request would have been made if circumstances permitted. An emergency management body would include all the traditional emergency services such as the volunteer fire brigades and State Emergency Services (see s 109). That’s a long way of saying you can’t be sacked for responding as a member of an emergency service in circumstances where that is reasonable. The Fair Work Act is a Commonwealth Act and so will apply across Australia. Employment law is not my field, but from what I can see the remedy, if you are sacked, would be to bring proceedings with Fair Work Australia (see s 773 to 783) which could take time and may or may not lead to you getting your job back.

Community service leave

(And thanks to Steve Cliffe for bringing these provisions to my attention).

The Fair Work Act does set out National Employment Standards. These ‘are minimum standards applying to employment of employees’ (s 61). The minimum standards relate to, amongst other things, community service leave (s 61(2)(f)). ‘An employee who engages in an eligible community service activity is entitled to be absent from his or her employment’ during the period of that community service activity, and for a reasonable amount of time for travelling to and from that activity and resting after that activity (s 108).

An eligible community service activity includes a ‘a voluntary emergency management activity’ that in turn would include responding as a member of the Rural Fire Service. For more details read the Community Service Leave webpage from the Fair Work Ombudsman.

Conclusion

Employees who are volunteer members of the RFS are afforded any protection from threatened termination of their employment if the Premier has declared that the fire emergency is an emergency to which part 3A of the State Emergency and Rescue Management Act 1999 (NSW) applies. That could be, but is not automatically, a s 44 fire. Employees do have some protection against dismissal based on the Fair Work Act 2009 (Cth) s 772 but often remedied under that Act are less than effective.

Employers do have a legal obligation to allow members of the RFS to take community service leave to take part in an emergency response.